Reversal of Pickering's Decisions on Appeal

Judge Pickering has testified that he will adhere to judicial precedent, but PFAW's report on his record notes that in 15 of the 26 cases in which Pickering has been reversed by the 5th Circuit, it has been through unpublished decisions by the court of appeals. According to 5th Circuit rules, unpublished reversals are used to decide "particular cases on the basis of well-settled principles of law." Eleven of those 15 cases in which Pickering, according to the 5th Circuit, violated "well-settled principles of law," involved constitutional, civil rights, criminal procedure, or labor issues. It should be noted that Pickering is one of two district court judges within the 5th Circuit nominated by President Bush to that court of appeals. The other, conservative Edith Brown Clement, who was recently elevated to the 5th Circuit after serving as a district court judge for a slightly shorter period than Pickering, was never reversed in an unpublished opinion by the 5th Circuit, according to the information that she provided to the Senate. See PFAW Report at 12.

Judge Pickering pointed out that, as with most federal trial judges, only a small percentage of his decisions overall have been reversed, but did not explain his reversals for violating "well-settled principles of law." Senator Patrick Leahy questioned Pickering specifically about one of those reversals in Rayfield Johnson v. Forrest County Sheriff's Department. In that case, a prisoner made a First Amendment claim against a jail's blanket policy of denying access to magazines by mail. Pickering turned the case over to a magistrate for a recommendation, and the magistrate ignored or missed a 5th Circuit decision, Mann v. Smith, that was the controlling precedent striking down such policies as violating an inmate's First Amendment rights. Functioning much like an appellate judge, Pickering reviewed the magistrate's recommendation and approved it, but did not even consider the Mann case. In other words, the magistrate missed or ignored a controlling 5th Circuit precedent, one involving a First Amendment violation by the jail, and Pickering relied entirely on the magistrate, conducting no research of his own, and essentially rubber stamped what the magistrate had recommended. At the hearing, Pickering's response was that he and the magistrate "goofed" in this case. This was only one of a number of such "goofs" - failure to follow controlling law - as People For the American Way's report documents.

Indeed, even more troubling were Judge Pickering's responses to Senator Leahy's questions about another 5th Circuit reversal for failure to follow "well-settled principles of law" in Abram v. Reichold Chemicals. In that case, Judge Pickering threw out of court permanently the claims of eight "toxic tort" plaintiffs because they had not complied with a case management order. The decision was reversed because Judge Pickering had violated settled law that a trial judge must first try to use lesser sanctions before permanently throwing someone out of court. Senator Leahy was particularly concerned because the Fifth Circuit had reversed Pickering based on the same legal principle three years earlier, in another case in which Pickering had abused his discretion by permanently throwing out a case without trying other alternatives. Judge Pickering responded that he felt he had acted properly, although the Fifth Circuit clearly disagreed.